Welcome to Part One of Trust and the Presidency!
The framers had two big trust issues to wrestle with when they designed the presidency. First, they wanted the President to serve the common good and not his or her favored faction. Second, they wanted the President to have enough power to get things done but not enough to become a tyrant. Their ultimate goal was to create a republic where supreme power would be invested in its citizens and their elected representatives, and where the laws would serve all citizens equally, rather than the interests of a royal family or a partisan president. (See our short civics course American Democracy: Liberal and Republican.)
The framers overcame their distrust by using the Constitution to limit the authority and autonomy of the presidency and by requiring accountability to Congress. How they did this is the subject of Part One of this short civics course on the presidency. Parts Two through Six review the many ways that the presidency changed after the Constitution was made effective. Part Seven proposes some ways that citizens can help “keep the republic,” and some ways citizens can make it more likely the Executive Branch will serve them better.
Complete this short civics course and decide for yourself: is the Office of the President, past, present, or future, too strong or too weak? Do most modern presidents serve all Americans or just some? Who is the President accountable to, if anyone? Staying vigilant to these issues and the evolving nature of the presidency (and the Constitution itself) is critically important to any American who loves liberty, fairness, and accountability.
PART ONE: THE FRAMER’S MISTRUST AND THE PRESIDENCY
A. Introduction
- Trust in a government does not come easily. Most fundamentally, trust requires strong belief or evidence that a government’s interests are aligned with our own interests, that it can deliver on those interests and deliver fairly, and that it will be accountable to us for doing so. (If you want to deeper into this subject, please see our short civics course on Trust and Mistrust.)
Americans have been losing trust in the presidency and the Executive Branch in general. You can see this in Chart 1 above. Until 2006, the majority of people (more than 50 percent) responded that they trusted the federal Executive Branch “a fair amount” or “a great deal.” The one exception was 1974 with its recorded-setting low of 40 percent, due to the Watergate crimes. By contrast, in 10 of the 14 years from 2006 through 2019, most people reported they trusted the Executive Branch “not very much” or “not at all.” In fact, trust and mistrust of the presidency (and of government in general) was an issue from the very beginning, when the framers were debating how to design our Constitution.
When the framers created the presidency, they were intent on solving two trust-related problems. One problem was how to harness political competition for the public good without the polarizing consequences they observed in England and Europe. They did not want anyone in any faction to mistrust a government that might be controlled by their opponents. The other problem was how to balance the need for an empowered executive to get things done against the risk of a tyrannical executive.
B. Public Good versus Factionalism and Tyranny
The framers had good reason to fear the tyranny of factions. The period when the thirteen original American colonies were formed overlapped with one of the most violent and deadly times in English and European history. Memories of the Thirty Year’s War (1618-1648) which involved most of the European states of the time, the English Civil War (1642-1651), and the French and Indian Wars (1754-1763), and the Seven Year’s War (1756-1763) were fresh in the minds of colonial leaders. Many concluded that the factional divisions that led to these wars were to be avoided at all costs. Thus, James Madison said in Federalist 10, “A zeal for different opinions … have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.” Yet, the framers expected that people would naturally divide themselves into various factions, especially when advocating for their rights and privileges under the law. Thus, they faced a fundamental problem: how to balance the need for an empowered executive to get things done against the risk of a tyrannical executive favoring only one faction.
C. Tyranny versus Capacity
The framers wanted to avoid the tyranny that absolute power brings. They had suffered from the British system where the King, his ministers, and his colonial governors could do more or less whatever they wished to the colonies. (See their list of complaints in the 1776 Declaration of Independence.) Second, in trying to avoid that abuse, they had reshaped their new state governments in a way that gave most power to the people, through their elected legislators. In contrast, state executive offices were made weak by assigning executive powers to multiple leaders or committees.[1] The Articles of Confederation (1781-1789), which the Constitution replaced, went further: they did not assign any executive authority.[2]
The framer’s fear of incapacity was balanced by their fear of tyranny. Some of the framers worried that a weak executive office would make the national government too slow or too weak to respond to threats and emergencies.[3] Alexander Hamilton started out arguing for capacity: he wanted an executive presiding over a strong central government, with absolute veto power, and with unlimited time in office, subject only to good behavior.[4] Ultimately, the framers had two tough problems. One problem was how to avoid the tyranny of faction. The other problem was how to balance the fear of tyranny against the fear of incapacity. Their solutions are set out below.
D. The Presidency as Conceived by the Framers
- In Service to the Common Good
The framers wanted a presidency that served the common good. By definition, the presidency should not include incentives for partisan or populist behavior. Alexander Hamilton summed it up in 1788, saying, “We are attempting, by this Constitution, to abolish factions, and to unite all parties for the general welfare.”
Creating the Electoral College to insulate the President from politics was a big part of their strategy.[5] They ruled out letting Congress always choose the President, for fear that a president would be beholden to a particular congressional faction. They also ruled out letting the state legislatures elect the President. Some feared a president in debt to one regional interest, perhaps northern states, at the expense of another region, perhaps the southern states. Direct elections were resisted as well. Smaller states feared direct elections would allow the more populous states to dominate them. Some framers such as James Madison feared the populism that direct elections might bring. In contrast, others feared a president beholden to Congress – or, like Gouverneur Morris, feared the partisan impact direct elections would have on Congress. Instead, the framers decided that a group of people representing each state – an Electoral College – would vote for their preferred presidential candidates. (See Article II, Section 1, Clause 3 of the Constitution.) The framers did this for several reasons. They expected that the electors would act as filters, supporting only the worthiest candidates. They also expected that aspiring candidates would find it difficult to mount campaigns against their opponents when the electors were widely dispersed across the states and likely to represent a wide range of regional interests.[6]
| The idea and implementation of the Electoral College was and is controversial. More will be discussed in Part Two of this series and in a separate, in-depth course devoted to this topic. |
- Divided and Constrained Powers
The framers agreed to establish a strong, flexible presidency that would be constrained against tyrannical behavior. They did this by assigning the President with power to execute the laws while also denying the President any opportunity to make laws or act as a judge.
- Article 1, Section 1, asserts that “All legislative powers herein shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
- Article I, Section 8 assigns to Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof.”
- Article 1, Section 7, Section 8, and Section 9 clarify that the legislative powers include the authority to set fiscal policies for revenue collection, expenditures, and borrowing.
- Article 2, Section 1 of the Constitution says, “The executive Power shall be vested in a President of the United States of America.”
- Article 3, Section 1, says, “The judicial power of the United States shall be vested in the Supreme Court …”
Power was to be divided between the executive, legislative, and judicial branches of government. Congress would set policy, make laws, raise revenue and establish budgets, while the President would build and manage a team using budgeted resources to execute the policies and laws set out by Congress – with the Supreme Court attending to matters of justice. Put another way, the framers set up a system where Congress and the Office of the President needed each other – and could act as a check on each other. And, as history would shortly show, the Supreme Court quickly evolved to adjudicate on alleged constitutional infractions by either branch.
Some of the framers argued for an additional constraint on the President; they wanted an Executive Council in addition to Congress and the Supreme Court. The idea had a precedent: most ex-colonial states used such councils to both advise and bind their executives. For example, in 1784, New Hampshire set up an executive office that included a “president” and a small executive council, each with veto power over each other. New Hampshire is now the only state that has retained this structure.[7] The application of the executive council idea to the federal Executive Branch was rejected due to a lack of consensus concerning the council’s make-up and the extent of its’ authority.[8]
The framers were also clear that the President was accountable to Congress. This was done in two ways: through an obligation to report on the state of the union to Congress, required by Article 2, Section 3, and through the threat of impeachment in the case of treason, bribery, or other high crimes and misdemeanors as set out in Article 2, Section 4:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
“All civil Officers of the United States” includes officials from the executive or judicial branches of the federal government in positions that have been authorized to exercise powers and authorities on behalf of the government.[9] Almost all civil officers of the United States are appointed by the President and are subject to the approval of the Senate. Examples include federal justices, the Attorney-General, all department heads, and some agency heads. Officers from the Army and Navy are excluded. Members of Congress are subject to expulsion but, thus far, not to impeachment.[10]
E. Presidential Job Description
The President was to have five main responsibilities, as set out in Article 2, Section 2, and Section 3:
- defend the land as commander in chief – when a war is declared by an enemy or by Congress;
- make treaties, appoint ambassadors, and serve as the nation’s representative when dealing with foreign governments;
- faithfully execute the laws of the land;
- appoint Supreme Court justices and other high officials; and
- participate in law-making.
We will review each in sections that follow.
- Defend the Land
To defend the land, the framers agreed that the President would command the armed forces – with several explicit reservations. The desire for constraint was perhaps the natural result of widely held fears, historically and within recent memory, that many kings and princes had used their military forces in ways that brought misery, either by demanding heavy taxes and conscription to support a war or by using the military to repress the population. One of those wars, the French and Indian War, had involved the colonies and had ended only in 1763. Here are some remarks on the subject of war from the framers:
- James Madison said, “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare.”
- Thomas Jefferson said, “Governments constantly choose between telling lies and fighting wars, with the end result always being the same. One will always lead to the other.”
- Benjamin Franklin said, “All wars are follies, very expensive and very mischievous ones.“
- George Mason said “that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.“.[11]
It was understood from the beginning that the President would be fully empowered to act in defense of the nation if any foreign power should declare war against the United States of America. James Madison’s notes from the Constitutional Convention explained the general consensus at the time: that giving Congress the power to declare war would still leave the President with power to repel sudden attacks.[12] Only one delegate, South Carolina’s Pierce Butler, spoke in favor of granting authority to declare war to the executive.
Other than for national self-defense, the President’s war powers were quite constrained. Congress, not the President, was to decide if and when to declare war, if and when to suppress domestic insurrections. Congress was to decide whether to create an army, how the army and navy would be funded, whether to call up the state militia, and how the army, navy, and the state militia would be organized. These stipulations are spelled out in the Constitution and are cited below.
The Commander in Chief Clause in Article 2, Section 2 says “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”
The Calling Forth Clause in Article I, Section 8 reserves to Congress the power “to declare war,[and] to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions…”
Article I, Section 8 also reserves to Congress the power “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; … [to] make Rules concerning Captures on Land and Water; to raise and support Armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a Navy; to make Rules for the Government and Regulation of the land and naval Forces; to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States…”
- Make Treaties, Appoint Ambassadors, and Receive Diplomats
The framers constrained the President’s powers when dealing with foreign governments. They did so out of fear that a president could be seduced by a foreign power to harm the country. For example, according to James Madison’s notes at the Constitutional Convention, Gouverneur Morris observed that the President
“… may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard against by displacing him… One would think the King of England well secured against bribery. Yet Charles II was bribed by Louis XIV.”[13]
To guard against such a possibility, the framers set out several constraints in the Constitution. These are detailed below:
Article 2, Section 2 says the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls …” but …
Article I, Section 8 reserves to Congress the power “to regulate Commerce with foreign Nations…”
Moreover, the Emoluments Clause in Article I, Section 9, says, “… no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.”
If these checks were insufficient, and a president did come under the influence of a foreign power, then impeachment could be used to remove the President per Article 2, Section 4.
- Faithfully Execute the Laws of the Land
Faithfully executing the laws of the land is one of the most fundamentally important obligations of the presidency. The president is required to do so by the Take Care (or Faithful Execution) Clause in Article 2, Section 3:
“[The president] shall take care that the laws be faithfully executed…”
To faithfully execute the laws of the land, the presidency was assigned executive power that was mostly undefined. There was a general understanding during the Constitutional Convention that a president would need to supervise a bureaucracy composed of skilled, knowledgeable personnel who could help implement the laws of the land. This understanding was not spelled out. The next section reviews what little was made clear.
4. Appoint Supreme Court Justices and Other Officers
The Constitution assigned the President shared powers of appointment because several framers worried the power could be abused. In Federalist 76, Alexander Hamilton noted that unconstrained appointment powers would lead to appointments on the basis of favoritism or nepotism and, thus, to corruption rather than competence. Hamilton’s worries must have prevailed because Article 2, Section 2, Paragraph 2, Clause 2 puts some constraints on the power of appointment by requiring the advice and consent of the Senate for the appoint of high officials:
Article 2, Section 2 says the President “He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…” yet …
Even so, Article 2, Section 2, and Article 2, Section 3 also confer some unconstrained powers of appointment:
“… the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
“… [the President] shall commission all the officers of the United States.”
The Constitution is silent on the related presidential power to remove.[14] The topic was raised. For example, in Anti-federalist 67, George Clinton wrote in 1787 that the President should not be allowed to remove officials without the advice and consent of the senate. The topic became a major source of debate soon after the Constitution was made effective in 1789. That topic is covered in the next section below.
The framers gave the President limited supervisory power. This was done through the Written Opinion Clause in Article 2, Section 2:
“… [the President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices…”
The Written Opinion Clause appears to limit the President in several ways.[15] The president may seek information only from federal Executive Branch officers, not from the legislative or judicial branches, and not from any state or local offices. The president may require accountability from officers only in their public capacity, and only as it relates to the public duties of their offices – a president may not inquire into their private lives nor compel them to serve his (or her) own needs. In addition, the requirement for written responses makes it harder for officials and for the President to hide or obscure the nature of their supervisory transactions.
5. Participate in Law-Making
The president was expected to participate in law-making, with Congress in the dominant position. The president was given two tools for this role. One was the right to make recommendations to Congress about policy and law. The other was the power to veto legislation unless Congress could override the veto with a two-thirds majority in both the House and the Senate.
Article 2, Section 3, says, “[The president] shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as [the President] shall judge necessary and expedient…”
Article 1, Section 7 requires that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.”
- Additional Powers and Responsibilities
The framers granted the President the power to convene or adjourn one or both houses of Congress in extraordinary situations. The conditions for an extraordinary adjournment require a formal disagreement between the House and Senate on when to adjourn – although this has never happened.[16] Article 2, Section 3 says the President
“…may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper”
Congress was often not in between sessions for several months each year. This absence sometimes confounded presidents who needed Senate confirmation for Cabinet nominations, Senate confirmation for treaties, or needed the House and Senate for issues of war, crises, and urgent legislative requirements.[17] The problem was largely solved in 1933 when the twentieth amendment established January 3 as the start and end date for Congress – with January 20 as the start of each presidential term. Since then, extraordinary sessions have been called only four times.
Finally, there is some overlap in the powers of the presidency and those of the federal court system through the power to pardon. The power of pardon is limited to offenses against the United States, meaning the President cannot pardon people for offenses against a state or local government, nor for any crimes against individuals. In addition, per Article 2, pardons may not be used to nullify impeachments.
Article 2, Section 2 says the President “… shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
– – –
Congratulations! You have completed Part One of Trust and the Presidency.
Here is a quick review of what you learned.
The framers of the Constitution faced some big trust issues. Among these were whether the presidency could be trusted to serve the common good rather than a favored faction and whether the president could be trusted with enough power to deal with the problems of the day without tyrannizing the people. The framers used the Constitution to create liberal, republican institutions to help inspire trust. They agreed the President should not have unlimited power, but they also agreed presidential power should not be diluted by dividing it across several executives or an executive committee. They sought to avoid partisan motivations by electing the President through an Electoral College. They created a presidency empowered to implement the laws without making law itself, to lead the nation in war but not to declare wars, and to negotiate treaties only in consultation with the Senate. Overall, they meant to ensure the President was accountable to Congress.
| How much of the framer’s original vision can you see in the presidency of today? Did they solve their trust issues? Why or why not? |
What comes next? Part Two of this course will examine how the presidency became politicized and what the implications are for presidential power, partisanship, and accountability.
You may also be interested in our additional short civics courses entitled America: Republic or Democracy, Democracy is Precious, What Governments Do, Trust & Mistrust, and Fear & Fear-Mongering.
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© Center for Free, Fair, and Accountable Democracy
July 2020
This material is to be used only for civic education.
It may be copied and distributed only for non-profit, non-partisan, educational purposes and only with proper credit to the
Center for Free, Fair, and Accountable Democracy.
Written by Douglas Addison for the
Center for Free, Fair, and Accountable Democracy.
Principle Reviewers:
Jay Barth,
M.E. and Ima Graves Peace Distinguished Professor of Politics, Emeritus; Hendrix College
Matthew Crenson
Professor Emeritus and Academy Professor,
John Hopkins University
Benjamin Ginsberg,
David Bernstein Professor of Political Science,
Johns Hopkins University
Internal Reviewers:
Mark Nelson, Director
Eric Palladini, Director
Grayson Lewis, Advisory Board
Mark Molli, Advisory Board
CFFAD is a non-profit organization providing non-partisan civic education.
Cover photo: whitehouse.gov
End Notes
[1] McKenzie, C. (1942). The problem of the executive. Washington University Law Review, 27(3). See pp. 350-352. Available at: https://openscholarship.wustl.edu/law_lawreview /vol27/iss3/4
[2] The Congress annually elected an individual who served as the President of the Congress. The President of the Congress chaired the Committee of the States when Congress was in recess, and performed other administrative functions. All executive powers were controlled by Congress. The full text of the Articles are here: https://www.ourdocuments.gov/doc.php? flash=true&doc=3&page=transcript
[3] Another weakness, unrelated to the topic of this learning module, was the inability of the Confederation to finance their joint defense. The problem came a head during Shay’s rebellion of 1786-87 and became a major motivation for the Constitutional Convention.
[4] See notes from the Constitutional Convention on Monday June 18, 1787. From https://avalon.law.yale.edu/ 18th_century/debates_618.asp
[5] Constitutional Convention, September 4, 1787.
[6] See especially Madison in the Federalist Papers No. 10.
[7] History of the Executive Council [in New Hampshire] https://www.nh.gov/council/history/index.htm
[8] See notes from the Constitutional Convention on August 18, August 20, and September 7, 1787. https://avalon.law.yale.edu/subject_menus/debcont.asp
[9] See https://constitution.congress.gov/browse/essay/artII_S4_1_2_1/
[10] See https://www.senate.gov/artandhistory/history/common/expulsion_cases/Blount_expulsion.htm
[11] Ratification by the States, Volume IX: Virginia, No. 2.
[12] From https://avalon.law.yale.edu/18th_century/debates_817.asp
[13] In 1667, Charles II of England had been humiliated by the Dutch Raid on the Medway, and in 1668, Louis XIV of France had been offended by the Dutch preventing his conquest of the Spanish Netherlands through the Triple Alliance. In 1670 the two kings concluded the Secret Treaty of Dover, intending to destroy the Dutch Republic. Yet, the prospect of war was unpopular in England, so Charles had difficulty obtaining funding from Parliament. To solve his problem, he fabricated diplomatic incidents to justify the conflict and obtained funding from French King Louis XIV — in exchange for selling parts of England to France (!!) and a promise to publicly convert to Catholicism. See https://www.history.com/news/foreign-influence-constitution-founding-fathers and https://en.wikipedia.org/wiki/Third_Anglo-Dutch_War.
[14] The Senate has the authority to impeach senior officers from the federal executive and judicial branches per Article 1, Sections 2 and 3, and Article 2, Section 4.
[15] Amar, A. (1996). Some views on the Written Opinions Clause. Virginia Law Review, 82(4), pp. 647-675.
[16] On April 15, 2020, the President proposed to use Article 2, Section to adjourn Congress in order to make recess appointments. The President did not follow through.
[17] Extraordinary sessions of Congress: A brief history https://www.senate.gov/artandhistory/ history/resources/pdf/ExtraSessions.pdf